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2013 MarsdenLR 2964
HIGH COURT SABAH & SARAWAK SANDAKAN
LO KUI CHEN @ LO KUI JIN – Appellant
Versus
DR KALAYARASU SUBRAMANIAM (ENCL 7) – Respondent
[Suit No: SDK-22-60/12-2011]
Failure to comply with prescribed service methods in court rules can invalidate judgments and requires proper rectification to ensure fair trial rights.
Headnote:(A) Rules of the High Court 1980 - Order 10 rule 1(1) - Order 13 rule 7 - Judgment in default of appearance - The court found that the service of writ was improper as it was not conducted by prepaid AR registered post, in violation of the specific mandated service requirement - Further, the plaintiff's failure to provide the necessary certificate of non-appearance when seeking judgment significantly undermined the validity of the default judgment - The court emphasized the requirement for motions regarding judgment to be made by summons, noting that the plaintiff's approach in seeking ex parte judgment was incorrect - Recognizing the potential for serious injustice to the defendant, the court set aside the default judgment and required proper service of the writ to initiate a fair trial. (Paras 1, 9, 15, 24)
| Table of Content |
|---|
| 1. grounds for setting aside judgment (Para 1 , 2 , 3) |
| 2. plaintiff's response and validity of service (Para 4) |
[1] This is an application under Enclosure 7 by the Defendant to set aside the judgment in default of appearance entered against him on the 9th of May 2012.
[2] The Defendant listed the following grounds in his application namely:
1) That the service of the writ of summons and statement of claim was irregular and invalid and not in accordance with O 10 r 1(1) Rules of the High 1980.
2) No certificate of non appearance was produced by the Plaintiff when praying for judgment to be entered on the 9th May 2012 as required under O 13 r 7 Rules of the High 1980. It was only taken out on the 4th December 2012.
3) The Notice of Motion to enter judgment was improper and invalid because:-
I. It should have been made by way of summons and not by motion as per O 13 r 6(3) Rules of the High 1980.
II. Affidavit in support of the Notice of Motion should not be deposed by the Plaintiff's counsel.
III. The Notice of Motion was never served on the Defendant and should not have been heard ex-parte.
4) The Senior Assistant Registrar was misled by the Plaintiff's counsel when the counsel informed the Court that the Notice of Motion was an ex parte application.
